ITV‘s decision to permanently suspend the production of The Jeremy Kyle Show is making headlines. However, this should not come as a surprise given recent controversies surrounding duty of care issues in reality television programmes. Ofcom and MPs must tread very carefully in proposing new duty of care obligations on broadcasters to look after adult contributors.

  1. The Jeremy Kyle Show

The latest controversy over The Jeremy Kyle Show will have been viewed by some ITV executives as an opportunity to finally end the long running series. Although the show regularly still attracted one of the channel’s highest morning audiences, after fourteen years its lowbrow image and confrontational style have appeared increasingly tired and dated. It also looked out of step with the public mood and the sharper and more upmarket image ITV Director of Television, Kevin Lygo, is trying to create to attract valuable advertising. This latest controversy – likely to run and run if ITV did not take decisive action – was the show’s final curtain call.

  1. Reality Television Under Scrutiny

With all the headlines following the sad death of Steve Dymond a week after taking a lie detector test on The Jeremy Kyle Show, there have been – perhaps predictably – loud cries of ‘something must be done’ about the care of adults who appear on reality television programmes like Jeremy Kyle and Love Island. The Digital, Culture, Media & Sport Commons Committee (the ‘DCMS’) was quick to announce it is to hold an enquiry into the issue and examine whether the current regulatory regime is fit for purpose. The Committee Chair Damian Collins MP said that such programmes “risk putting people who might be vulnerable on to a public stage at a point in their lives when they are unable to foresee the consequences, either for themselves or their families.” The Committee will consider (a) the psychological support production companies and broadcasters provide to reality television contributors before, during and after the production process; (b) best practice and whether there is room for improvement in the support that is already offered; (c) who should be responsible for monitoring whether duty of care policies are applied effectively; (d) whether design formats for reality television put unfair psychological pressure on contributors and encourage more extreme behaviour; and (e) the future of reality television and how it accords with evolving attitudes to mental health. The deadline for submitting evidence is Thursday 13 June 2019.

Ofcom – eager to demonstrate it is a watchdog with teeth and capable of being the regulator of choice for social media companies when the government is consulting on the issue of online harms – has asked ITV for an urgent report on the protocols followed in The Jeremy Kyle Show and the correlation with ITV’s other reality and factual programming. It is unsurprising perhaps that Ofcom consistently receives large numbers of complaints about reality television shows. Indeed, it received 27,602 complaints last year in relation to Channel 5’s Celebrity Big Brother, which was by far the most complained of programme of 2018. It also received 4,192 complaints about Love Island, over half of which related to a scene in one episode and the reaction of contestant Dani Dyer when shown a video of her boyfriend Jack Fincham meeting his former girlfriend. ITV reality shows I’m a Celebrity…Get Me Out of Here and The X Factor also featured in the top 10 most complained about programmes in 2018.

The complaints that Ofcom receives fall into two broad categories. Firstly, that individual contributors have been treated unfairly within the programme and, secondly, that audiences have suffered harm or offence as a result of the broadcast of the programme. In her evidence before the DCMS Committee earlier this month, Ofcom’s Chief Executive, Sharon White, was critical of broadcasters for not being clear enough with audiences on the support that is made available to contributors, and which could avoid or mitigate some of the harm and offence to viewers. She also noted that Ofcom is particularly concerned about the welfare of contributors post transmission and cited the recent tragic suicides of two Love Island contributors who had featured in the programme in 2016 and 2017 respectively. Clearly people thrust into the world of instant celebrity can be ill equipped to deal with new found fame. It is important to recognise that social media pressures can build over time and the repercussions only be felt months after a programme is first broadcast. Ofcom has indicated that it may introduce a new code of conduct for broadcasters, imposing a duty of care to look after adults taking part in programmes. But MPs and Ofcom will have to tread very carefully.

  1. Duty of Care: Under 18s

Based on the current regulatory regime, Ofcom has specific powers to impose rules on broadcasters to protect contributors who are under 18 years of age. These are found in Section One of the Broadcasting Code. In particular, Rules 1.28 and 1.29 impose a duty of ‘due care’ on broadcasters to look after the welfare of under 18s ‘involved in programmes’:

Rule 1.28 – Due care must be taken over the physical and emotional welfare and the dignity of people under eighteen who take part or are otherwise involved in programmes. This is irrespective of any consent given by the participant or by a parent, guardian or other person over the age of eighteen in loco parentis.

Rule 1.29 – People under eighteen must not be caused unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes.

It was under these provisions that back in the 2000s, as a result of the treatment of children on The Jeremy Kyle show, Ofcom first introduced and then revised its lengthy code of conduct after consultation with childcare experts and the industry. Very sensibly Ofcom steered away from extreme voices linked with a few local authorities which sought draconian limits if not a ban on children taking part in television programmes at all.

  1. Duty of Care: Adults

Ofcom has no statutory powers to regulate the treatment of adults involved in programmes unless they are shown during a broadcast to be humiliated, caused distress or discriminated against so as to cause offence and, crucially, the broadcaster cannot editorially justify that offence. The relevant rules are found in Section Two of the Broadcasting Code:

Rule 2.1 – Generally accepted standards must be applied to the contents of television and radio services… as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.

Rule 2.3 –  In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context….such material may include, but is not limited to, offensive language, violence, sex, sexual violence, humiliation, distress, violation of human dignity, discriminatory treatment or language.

Ofcom’s statutory remit is limited to the broadcast of programmes and does not extend to what goes on behind the scenes – before or after broadcast – involving adults (except as regards invasions of privacy). Ofcom’s proposal to introduce new duty of care provisions for adult contributors is intended to provide clear and effective guidance for broadcasters. Sharon White has indicated that this guidance will likely be published before the summer and largely reflect the rules on the treatment of under 18s. It will cover the key stages of pre-production, filming and post-production in both factual and reality television programmes, applying equally to the Victoria Derbyshire Show as it would to Love Island.

As for ITV, it has revised its duty of care processes ahead of the upcoming series of Love Island. All contestants will be offered ‘enhanced psychological support’ pre and post filming, including assessments by an independent doctor, psychological consultant and discussions with contributors’ own GPs to check their medical history. It will also have more detailed conversations with potential contributors regarding the impact of their participation on the show, encourage them to discuss and reflect on this with family and friends, as well as bespoke training on social media and financial management. During filming, the senior production team on the ground will receive training in mental health first aid. ITV will also offer contributors eight therapy sessions once they return home and a welfare team solely dedicated to the contributors will maintain proactive contact with them for a period of 14 months up until the end of the next series.

To go further and impose new obligations on broadcasters would require new legislation which needs to be thought through very carefully. Once the moral panic caused by the tragic death of Steve Dymond has subsided, sensible voices may be heard pointing out the strong arguments for keeping the current rules as they are, but broadcasters taking extra but proportionate care over potentially vulnerable adults taking part in programmes.

Trevor Barnes is a consultant solicitor in the Media: Content and Disputes Team at Simons Muirhead & Burton and formerly Senior Standards Manager at Ofcom.

Meriem Anou is an associate solicitor in the Media: Content and Disputes Team at Simons Muirhead & Burton and recently completed a secondment at Channel 4.